How does Fourth Amendment play in world of technology?

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Posted May. 10, 2013 @ 9:59 am

From defense lawyer David A. Cooper’s perspective, the law is playing catch-up as technology zooms ahead with few protections. He envisions a world not far off with drones peering into people’s lives, police watching from afar what people are viewing on their computers, and cameras everywhere. These advances are replacing the eyes and ears of what used to be legions of detectives.

That’s exactly what’s in play, according to Jeffrey Rosen, a law professor at George Washington University Law School. The Fourth Amendment provision that citizens be free from unreasonable searches of houses, persons, papers and effects is an uneasy fit in a digital age in which much surveillance is virtual, observes Rosen’s book “Constitution 3.0: Freedom and Technological Change.”

“Constitutional protections for privacy were drafted in an age when the most common way to invade privacy was for the state to break into someone’s home,” Rosen said.

“Speaking broadly, the best thing you can do for your private papers is to store them in a locked desk drawer and put the key in a safe place, rather than storing it in a digital cloud,” he said. “And that doesn’t make sense.”

Exactly what protections the Fourth Amendment extends to information stored online remains unclear, particularly given a doctrine that holds that a person does not have a reasonable expectation of privacy for information shared with a third party, Rosen said.

Testing the limits

In Cooper’s view, law enforcement routinely uses technology to its advantage until being reined in by the courts.

“They’ll do what they can until they can’t,” Cooper said.

Cooper and others, including the American Civil Liberties Union, call on lawmakers to put “hard and fast” rules in place to preserve privacy protections.

It’s an opinion shared by U.S. Supreme Court Justice Samuel A. Alito Jr. In agreeing with the ruling that limits authorities’ use of GPS monitoring, Alito implored lawmakers to set guidelines as technology such as GPS makes long-term surveillance relatively easy and cheap.

“A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way,” Alito wrote.

George Washington University Law’s Rosen looks to the states. “States have been pioneers in protecting privacy,” he said.